Tuesday, April 19, 2011

The Houston Chronicle has good coverage of a bad bill, SB 152, that cleared the Senate yesterday allowing admission of uncorroborated testimony about prior, unrelated acts in the guilt/innocence phase of sexual assault trials. The story opens:

In what critics say could be a "seismic change" in state criminal law, the Texas Senate tentatively approved a bill that would allow jurors in sexual assault cases to hear testimony about similar allegations against a defendant — even if the previous incident did not result in a conviction or even criminal charges.

The bill by Sen. Joan Huffman, R-Houston, would allow the introduction of testimony about allegations of other sexual assaults to be admitted during the guilt or innocence phase of a trial if a judge — outside the presence of the jury — hears the evidence and deems it relevant.

The bill gives "greater resources to prosecutors and victims of sexual assault," Huffman said Monday. Allowing testimony of similar sex offenses "brings Texas closer in line with federal rules of evidence," she added.

Sen. Royce West, D-Dallas, opposed the bill, arguing the measure would bring about "more wrongful convictions" because jurors will be afraid to acquit a defendant against whom they have heard multiple allegations. Jurors who are skeptical of the evidence of the case before them could feel compelled to convict "because he (the defendant) must have done something wrong," West said.

"All of us want to be law and order and the whole nine yards," West said. "But this is carving new ground in criminal jurisprudence. You ought to think long and hard, 'is that fair?' "

Although the Senate gave initial approval to the bill on a 23-8 vote Monday, Huffman retreated on her first attempt to pass the bill last week when it was met with hostile questions.

"This is a hard bill for many to vote against," said Sen. Robert Duncan, R-Lubbock. While current rules of procedure "are designed to protect liberty," he said Huffman's measure would allow jurors to hear "allegations that have not even been vetted by a grand jury."

The story quoted Patrick McCann, a criminal defense lawyer out of Houston who "said the rules of evidence are specifically designed to prevent juries from considering anything other than the facts of the case in front of them. Bringing in allegations that are too weak to garner an indictment or a criminal charge changes, fundamentally, the criminal justice system." That pretty much covers it.

Grits shouldn't have to mention, as Sen. West argued on the Senate floor, that Texas needs to find ways to improve the accuracy of trial judgments, not further cast them into doubt. The state does rape victims no favors when prosecutors secure false convictions only to have them overturned later based on DNA evidence. Not only does the real rapist go undetected, the victim must live with the guilt of having inadvertently helped frame someone who didn't harm them. Trials are no doubt difficult for rape victims, but surely it'd be even worse to live with the result when years later it turns out the victim picked the wrong man in a police photo spread, which in both controlled studies and likely in real-world trials happens with surprising frequency. This bill makes it more likely such errors result in a tragic false conviction.

There were three floor amendments, two of which improved the bill a lot from the version that left committee. Huffman amended the bill to leave discretion with judges, following a hearing outside the presence of the jury, instead of requiring admission. It also provides that the judge may only allow such testimony if s/he concludes it's reliable "beyond a reasonable doubt," which seems like a high bar for unadjudicated, uncorroborated testimony. An amendment by Robert Duncan from Lubbock required notice that such testimony will be presented at least 30 days before trial. Finally, Sen. Leticia Van de Putte actually tacked on an amendment to expand the crimes covered in her sex trafficking legislation.

In the end, just eight senators voted against the bill, three of whom voted for it in committee: Davis, Ellis, Gallegos, Hinojosa, Rodriguez, Watson, West, and Whitmire. Good for them. Companion legislation was heard a couple of weeks ago in the House Criminal Jurisprudence Committee but hasn't received a vote. This bill will expand the number of false convictions and amounts to prosecuting someone based on their reputation instead of provable acts. Truly a step in the wrong direction.

42 comments:

The bad part about this is that the AG's office will spend hundreds of thousands of dollars to defend this statute, which is certain to be found unconstitutional in the courts. Allowing hearsay or even direct testimony about unproven allegations long after the fact clearly violates the 6th and 14th Amendments.

Men beware. If you have ever had a crazy, dysfunctional girlfriend or wife you could be next. You playas are vulnerable too. Two or more old girlfriends get together there will be trouble. This bill is really scary.Cathy

Huffman's amendment seems to me to miss the point. The biggest concern here seems to me not to be that unreliable evidence of prior acts will be admitted - reliability standards that are already in place will probably do the trick there without inviting a watering down of the BRD standard - but rather that wholly reliable evidence about what happened in the past will affect the jury's determination of guilt in the present case in unreliable ways. Reliable evidence on this score is still awfully prejudicial.

Why is it fair to tell jurors about the man's sexual history/reputation, but not the woman's?

Add this to the Obama Administration's April directive that says all colleges must judge men accused of rape based on the weakest possible standard of proof, "preponderance of the evidence" (and may not wait for the police and courts to do their jobs) and we are rapidly approaching a situation where anybody a woman cares to accuse is automatically a rapist, and is not allowed to defend himself at all.

Google "Law of 22 Prairial" to read about the very likely (and predictable) result.

Grits, this is hardly a new major development in sexual assault litigation. For some time now, the common law has allowed extraneous unadjudicated sex crimes to be admitted into evidence in the guilt phase of the trial to rebut defense claims of consent or misidentification. The CCA permits this evidence under the "doctrine of chances." Ask any defense lawyer about it who practices in this area. The prosecution already has to give notice of these extraneous offenses upon request. This legislation won't change much.

SCOTUS will eat this alive. So basically what Huffinton is saying is that IF a person is hauled into court on weak charges, find as many people as you can that will say (S)He touched me once, so we can convict him on trumped charges. If it is that easy, I would like to drag Bush into court, because I 'know' he bombed Central America long before he went to Congress on Afganistan.. Also, Pull me in on the next trial of a DWI offender because I 'KNOW' he has driven drunk before, I heard him say it very clearly 20 years ago...

Pathetic.. Is it time for a Revolution yet? This country is way off track from the Constitution.

If I'm reading Rule 404 correctly, it doesn't single out SO's. Why is it we only pass onerous changes to Texas law for SO's. This bill would not have passed if worded like the Fed. rules because it would have applied to ALL trials. And why do we justify the proposed changes to parole by saying they wouldn't apply to 3G or SO's, when SO's are 3G. Why not just say 3G.

There are levels of risk in SO offenders as research continues show. If changes need to be made to our laws then make your argument for 3G alone and see if it holds water. don't use scare tactics because the public continues to believe the SO myths. A bad cohort is a bad cohort, Period.

So those people who were exonerated of rape convictions could now have those charges brought back if they're ever charged again? Maybe a DA or police make up new charges which, now combined with the old ones, look like an incriminating pattern. Genius!

So, the detectives will go around to everyone I have ever known in my life and ask them for some dirt on me? Then these accusations can be presented to a jury as though they have some basis in fact without any supporting evidence? I'm beginning to see why so many nutcases, as we refer to them, opt to have a shootout rather than be arrested. Seems to me that the odds of surviving either are about equal.

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction.

One guy I know is always being accused of sex crimes. Each time he gets accused it looks bad for him. So many women like to accuse him and this makes it difficult for him to get a fair trial. Men beware.

Huffman's bill tracks the federal rule of evidence, which was passed by Congress. That rule has been litigated in federal courts and has been found constitutional over and over. There is a provision that requires the judge to weigh the probative value and unfair prejudice to determine if it should be admitted.

I'm a prosecutor and not a big fan of this rule, but it isn't a radical departure from current law. Under current law, such evidence might already be admissible under 404(b).

The justification for this new rule comes from the known repetition of crimes by sex offenders. In addition, such criminals are quite deceptive and frequently make false claims of consent. This just gives the jury the whole picture when trying to decide who is telling the truth.

7:50, Pat McCann seems to think it's a bigger departure from current law than you portray. As for what Congress passes, since when is that a ringing endorsement? Congress also passes budgets financed by $1.7 trillion in annual, additional debt, but that doesn't make me want to eliminate Texas' balanced budget requirement.

Looking at 404(b), I 100% disagree with your interpretation that such information might be used now in the way the rule envisions. The rule expressly says "Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith." That's exactly what she's hoping to allow.

You're correct the rule says such information may be allowed for other reasons, including impeachment, etc., but this bill completely upends the first sentence of the rule you cite to claim it's not a big deal.

I do agree the commentary on this thread has been relatively overhyped, but the question about victims' backgrounds is indeed the equivalent one: There's a reason they don't allow hearsay testimony about rape victims' sexual history, etc., and it's a fair question why the same restriction shouldn't apply for the defendant.

7:52, there's a reason comments like yours are usually made anonymously: In reality, recidivism rates for sex offenders are low, which is why law enforcement rarely find people on the sex offender registration list committing new sex crimes.

As for the change from current practice, I think part of the basis for introducing the bill is a belief that, whatever the language of 404(b), courts are disinclined to admit this evidence where the prior acts are unadjudicated (making the evidence less reliable and more prejudicial, under the current 404(b) analysis). Can't speak to whether that comports with the experience of defense attorneys now, but I think that's the idea.

Although I no longer live in Texas, I regularly read this blog, mostly with bemusement. But I got a tell you, stories like this, that a law like this could even make it past committee, makes me have to ask, "What the fuck is wrong you people down there?"

Why is anyone surprised by this bill? This is Texas: the law & order state. But I am very surprised that 8 law makers had not only the guts to vote against this bill but also the foresight to see that this bill is very bad jursprudence. In addition, what you now have is the weaponization of a rape allegation.

4/20/2011 @ 7:52 sounds like a corrupt licensed sex offender treatment provider. The idea is to misrepresent the facts regarding recidivism as well as portraying teenage sex as deviant sexual behavior. These corrupt LSOTP's are all about the money. According to many of these corrupt providers/prosecutors/Huffman there is no such thing as a false accusation. If accused, you clearly did something wrong. It is just one more way to pass stricter laws, longer probation and parole resulting in extensive/extended depraved treatment which the offender will pay for. In some counties (Williamson) the offender is told who to go to for treatment (Center for Cognitive Education/Fred Willoughby/Dean Eddy/ Jean Berry). The Center requires cash only no receipts. They even have their own polygrapher located in their office. His name is Peter Heller.

" 7:52, there's a reason comments like yours are usually made anonymously: In reality, recidivism rates for sex offenders are low, which is why law enforcement rarely find people on the sex offender registration list committing new sex crimes. 4/20/2011 08:02:00 AM "

THANK YOU, THANK YOU, THANK YOU!!!7:52, You are only spouting the same BS inaccuracies loved by supporters of registration.

Hate to break it to you, but the SO that rapes your kid/wife/girlfriend is likely not only on a registry, but they are a FAMILY FRIEND or a RELATIVE.

Stupidity is not attractive. Neither is the repetition of lies. And repeating them frequently does not make them suddenly truth.

I am a wife, mother, grandmother. It frightens me to know that these types of bills are geared and can cause mostly men much heartbreak. It angers me to know that a female can make an allegation and it is taken as the gospel truth, even though it is not. It makes me sick that there are so many double standards against men. I dont understand why a lot of people believe that a man is always the one in charge. Clearly the female has more power than they should be allowed to have. This is sad and I am just wondering: WHEN ARE YOU MEN GOING TO START STICKING UP FOR YOURSELVES AND STANDING STRONG AGAINST THE WRONGS AND LIES OF FEMALES? Trust me, we are not all lilly white virgins that only want peace and harmony. Oh, and you women who will stand up and take offense to what I have said, GET OVER IT. You know that what I say is a fact. I am a real survivor of abuse, and I am not wallowing in my pity. I have learned to forgive and I will never let anyone call me a victim. Thank you for allowing me to vent.

11:57, Regrettably, Men can no longer stand up for themselves and 'do something' about laws geared towards the criminalization of anything we do. If you are male and do NOT support the laws to 'protect the children' then the non-supportive male obviously is a closeted sex offender who has hundreds of victims and is making excuses for their deviant behaviors.

it is amazing that common sense tells the population that refuting someone's facts by saying 'they have to be one of them' doesn't work with anything EXCEPT sex offenders. If I were to make bold statements backed by facts regarding the 'disease' of drinking, or the 'mental imbalance' of people that cause harm to others, people will come out of the woodwork to support my theory. However, if one makes the statement that most sex offenders are NOT after your kids, or that they do NOT re-offend as much as the loudmouths claim (even while I state the reports supporting my claims), my statements are picked apart and I am instantly a closeted Sex Offender waiting to hide in a tree line and steal your kids.

Mass hysteria is a wonderful thing for those that want to gain power. John Walsh is a washed up land developer, who loves to sexually harrass women, snort coke in the bahamas, and lived in a sham marriage for many years; But he's the good guy now! he makes false claims daily, has no idea what happened to his son other than he was murdered, and cannot factually state the the man convicted of the crime even did it. Yet everyday he uses HIS 'facts' to cause greater harm to this nations kids.

The only course for change in this country is to throw out the baby and the bath water. Our politicians have so corrupted the current system that Big business rules them and the only way they can keep the rank and file in line is to continue to oppress all of us.

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